Nearly 10 months ago, the board’s director Charla Burill told Cooksey he was under investigation for “practicing nutrition” without a license. A week later she went through his website with a red pen telling him what he could and couldn’t say legally, and suggested he remove the content she had crossed out. When he inquired about the consequences of not doing so, she told him he ultimately could be convicted of a misdemeanor, be charged with fines, and even spend time in jail.

As a result Cooksey removed some of the content the board objected to, discontinued his Dear Abby-styled advice column, and has censored everything he says in his blog to make sure it doesn’t sound like nutritional “advice.”

But the board’s lawyers argued that Cooksey silenced himself of his own volition; the board never forced him to stop speaking.

Because the full board hadn’t made a formal or final decision yet about whether his speech was illegal, the lawsuit Cooksey filed this spring was premature, they contended. The board’s director merely had “noted areas of concern” in Cooksey’s blog, “invited further discussion,” and “asked” him to make the recommended changes to his website.

The extent of Cooksey’s injury is “questionable,” because the board never took “formal action” against him, and because he “volunteered” to remove the “problematic” parts of his website, Coburn wrote in his order denying Cooksey’s request for preliminary injunction against the board in August.

“There is no evidence that plaintiff protested further or was otherwise ordered to comply,” he wrote.

Cooksey’s lawyers from the Institute for Justice called the judge’s reasoning “absurd.”

“In America, citizens don’t have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech,” said IJ Senior Attorney Jeff Rowes. “When the executive director of a government agency goes through your writing with a red pen and tells you on a line-by-line basis what you can and can’t say, that is censorship and the courts can hear that case.”

The institute plans to appeal Judge decision. The government cannot single people out, tell them that their speech is illegal, and then plead in court that it has not chilled their speech, the institute said in a press release.

“We intend to fight not only to defend the right to speak, but also to defend the right of speakers to go into court after the government silences them,” said IJ attorney Paul Sherman. “You don’t need the government’s permission to give someone ordinary advice, and we will take Steve’s case all the way to the Supreme Court if that’s what it takes to vindicate free speech and Internet freedom.”